Articles Posted inWorkplace Hazards

Under Massachusetts law, employees who suffer work-related injuries may be entitled to benefits and medical costs. Workers’ compensation is a form of insurance that provides reimbursement for medical costs, reduced wages due to a disability, and other coverage, such as job retraining. In addition to state law, the federal government sets forth standards to ensure the safety of employees throughout the nation. As federal agencies, the United States Department of Labor and specifically the Occupational Safety and Health Administration (“OSHA”) protect the rights of injured workers.

In some cases, employees may be aware of an unsafe working condition or a workplace hazard. OSHA gives employees the right to file a complaint if they believe there is a serious work hazard or if their employer is not following OSHA standards. Workers need not know whether a specific OSHA standard has in fact been violated in order to file their complaint. In many cases, OSHA will inspect the workplace upon receiving a complaint. If you are injured at work, and your employer did in fact commit an OSHA violation, you may be entitled to recover damages in addition to any workers’ compensation benefits you may receive.

Recently, a Boston seafood wholesaler was cited by OSHA, and the agency issued the employer fines for violating industry and OSHA safety standards. In fact, an employee was fatally injured on the job in March 2016 after inhaling ammonia that had leaked from a burst pipe in his employer’s machine shop. OSHA inspected and found serious violations.

Recently, the Massachusetts Reviewing Board of Industrial Accidents issued a decision in favor of an injured worker who received partial and total incapacity benefits until her employer went bankrupt and then received payment from a bondholder for a limited period of time. The employee sought payment of her § 34A and cost of living benefits. The Workers’ Compensation Trust Fund (WCTF), Commercial Union Insurance Company/One Beacon Insurance Company (reinsurer), and the employee appealed a decision that ordered the WCTF to pay the employee ongoing § 34A and cost of living (COLA) benefits, and ordered the reinsurer to reimburse the WCTF for payment of these benefits.

The employee had suffered a work-related injury on September 2, 1982, and was entitled to and paid § 34A permanent and total incapacity benefits before and after her employer went bankrupt. After bankruptcy, the bondholder paid her benefits under March 4, 2013.

The Workers’ Compensation Trust Fund argued that the self-insurer was not uninsured and therefore did not require their payment. The reinsurer argued that it was not obligated to pay the employee benefits directly. The Board stated that reinsurers are obligated by the Workers’ Compensation Act to further guarantee a self-insurer’s ability to pay benefits to injured workers. Employers that provide additional coverage as set forth by law are sometimes referred to as reinsurers.

In a concise opinion, the Massachusetts Appeals Court confirmed a lower court ruling regarding a wrongful termination following the commencement of a legal action related to a compensable workers’ compensation claim.

At issue in Santarpia v. Senior Residential Care, Mass. App. Ct. (2014), was an employee’s allegation that she was wrongfully terminated in contravention of public policy as retaliation for pursuing compensation following an at-work injury.

The plaintiff, a nurse, slipped and fell on some water that was leaking from a ceiling where she worked. Following the accident, she filed a workers’ compensation claim and received benefits. Two years later, she contacted an attorney regarding the case and was referred to a third attorney.

Virtually all Massachusetts employees are eligible for workers’ compensation insurance coverage, even if they work for a temporary agency or are undocumented immigrants. Their survivors are eligible for workers’ compensation benefits if the worker dies in a job-related accident.

Worker Killed While Cleaning Machinery

A sanitation supervisor at the New Bedford, Massachusetts plant of Sea Watch International died in January 2014 when his clothing became ensnared in the rotating shaft of a clam-shucking machine’s engine while he was cleaning the device. Victor Gerena, 35, died, leaving five children without a father. Gerena had worked at the plant for 18 years. Gerena worked for Sea Watch through a temporary employment agency, Workforce Unlimited. In June 2014, both companies were cited by the federal Occupational Safety and Health Administration (OSHA) and fined a total of $44,410 for their violations. An OSHA spokesman emphasized that the fines reflected the seriousness of the safety lapses, not the value of Victor Gerena’s life. The children may receive Social Security benefits and may also receive workers’ compensation benefits, since all employers in Massachusetts must insure their workers, with very few exceptions. This requirement also applies to an “employee leasing company” like Workforce, which supplies employees by contract to other companies.

Citations For Safety Violations

The violations against Sea Watch were for the plant’s failure to implement safety protocols to protect workers while they cleaned potentially dangerous machinery. The violations included failure to provide a lockout device, incomplete lockout/tagout procedures, not conducting periodic inspections of these procedures to ensure that all requirements were being met, and failure to train all affected sanitation employees in lockout/tagout procedures. In the opinion of OSHA investigators, if Sea Watch had followed those safety protocols, Victor Gerena would not have been killed. Sea Watch’s plant on Antonio Costa Avenue in New Bedford was cited by OSHA for seven violations, and the company was fined $35,410.

The federal Occupational Safety and Health Administration (OSHA) cited Central Transport LLC for safety hazards at its freight shipping terminal in Billerica, Massachusetts. OSHA investigators found conditions at the terminal that could lead to Central Transport employees’ being electrocuted, crushed, or injured due to falls. Central Transport had neglected measures it should have taken to protect its workers’ safety. OSHA fined the company a total of $330,800: $242,000 for willful violations, $44,000 for repeat violations, and $44,800 for serious violations.

Company Is Repeat Offender

Particularly egregious, according to OSHA, was the company’s being a repeat offender. It was previously advised of safety hazards but took no measures to remedy them. The most recent safety violations were basically the same ones it was previously given the opportunity to correct at its facilities in Illinois and Mississippi, but it chose not to. These were not minor technical offenses but serious lapses, creating a risk for employees of disability and death. According to OSHA officials, Central Transport has used up its options and must take steps to ensure that its employees have a safe workplace, regardless of location. OSHA is not willing to stand by and permit the company to continue its past practice of failing its employees by neglecting their health and safety.

$242,000 In Fines For Willful Safety Violations

In Central Transport’s Billerica shipping terminal, an electrocution hazard was created when the building’s roof leaked water and created pools on the floor, the location of electrified cabinets and chargers for forklift batteries. Employees who stood in water could be shocked if they plugged in battery chargers. They could also fall and be injured when driving forklifts, due to the slick surfaces in the part of the terminal where the roof was leaking. The forklifts themselves were defective, since they were not repaired when they developed mechanical problems but were just driven until they stopped working entirely. Workers could be struck or crushed by the unreliable forklifts. OSHA cited Central Transport for four willful safety violations, carrying $242,000 in fines. For a violation to be characterized as willful, the employer must have demonstrated intent, knowledge, and that it acted voluntarily in ignoring the law’s requirements, or showed indifference to worker safety and health. Continue reading →

The US Department of Labor has sued Crown Furniture, a West Springfield, Massachusetts company, and its owner, Donald Pottern, after Pottern allegedly fired a worker who had filed a complaint with OSHA over workplace safety violations. The Occupational Safety and Health Act is the basis for the agency’s authority to file suit on behalf of an employee against an employer that has retaliated for complaining to the agency about workplace safety violations.

The complaint was filed with the US District Court for the District of Massachusetts in Springfield, and it states that the employee contacted OSHA on May 9, 2011, alleging that Crown Furniture was committing health and safety violations by permitting the accumulation of asbestos, mold, and rodents in the basement of its Springfield facility. Two days later, Pottern questioned the employee about the reasons for his filing the complaint, after which he fired him. The fired employee submitted a whistleblower complaint with OSHA. After an investigation, OSHA found the employee’s complaint to be meritorious.

The DOL lawsuit asks the District Court to enter a judgment confirming that Pottern’s firing the employee was an act of retaliation against him for filing an OSHA complaint. The suit also seeks an injunction preventing Pottern from pursuing any such retaliation in the future against an employee for complaining of safety violations. The DOL also asks the court to enter judgment in favor of the employee for more than $20,000 in lost wages, with interest, and for compensatory and punitive damages. Additional affirmative relief would include a requirement that the employer post a nondiscrimination notice at the workplace.

Firefighters Die Trapped in Burning Building

A fire on March 26, 2014 near D & J Ironworks in Malden caused the deaths of two Boston firefighters, Michael R. Kennedy, 33, and Lieutenant Edward J. Walsh, Jr., 43. The firefighters died trapped in the basement of 298 Beacon St. They had been called to respond to what appeared to be a small residential fire, which high winds quickly turned into an inferno. Welding sparks had flown from D & J Ironworks onto wood siding at a building nearby. Conditions became so hot and dangerous that their fellow firefighters were unable to enter the burning building and get them out to safety. Their co-workers could only hear Kennedy and Walsh on the fire fighters’ radio saying they had no water, it was getting hot, and pleading to be rescued, but they could not enter to help them, and the two men died. Fire department observers believe the fire’s heat was so intense that the firefighters’ hoses burned through, leaving them with no water to fight the fire that engulfed them.

D&J Ironworks Fined for Violations That OSHA Says Caused Fire

For the violations that led to the fire, the US Occupational Safety and Health Administration fined the company $58,000, although the company disputed OSHA’s findings. OSHA decided to investigate after learning that employees at the job site played a role in the fire. D & J was issued a number of fines between $5,000 and $7,000 for each violation.

On Sept. 12, 2014, OSHA issued its findings that D & J committed 10 violations of federal occupational safety standards, resulting in the deaths of the firefighters, including that it had:

■ Failed to provide any training to its employees, in either general safety or fire safety;

■ Provided no fire protection and prevention program, and this led directly to the fire;

■ Failed to move the railing the workers were cutting and welding to a fire-safe location; and

■ Failed to have someone at the location assigned as a fire watcher, capable of preventing and putting out fires.

Although there has been no confirmed case of Ebola in Massachusetts, health care officials and front-line workers are developing protocols for screening those at highest risk for the disease and for protecting emergency responders and members of the public from contracting the lethal virus. After two nurses in Dallas tested positive for Ebola after helping to care for Thomas Eric Duncan, the Liberian who died of the disease, federal health officials decided to tighten the guidelines for American hospitals with Ebola patients, particularly with regard to Personal Protective Equipment (PPE).

PPE suits will be standardized to include a specific type of suit to ensure consistency in both training and use, possibly using only full-body suits. This is consistent with current CDC recommendations. A model of hood will be used that protects the health care worker’s neck so the neck will not be exposed. Removing PPE now includes an enhanced and detailed step-by-step disinfection of hands process with specific sequencing for removal of each piece of equipment and hand washing.

Braintree Clinic

There have been alarms in the Boston area. Harvard Vanguard Medical Associates, an urgent care center in Braintree, was briefly shut down after a patient who had traveled to the West African nation of Liberia arrived at the clinic seeking treatment for headaches and muscle aches. The unidentified patient was transported to Beth Israel Deaconess Medical Center by Brewster Ambulance. Company president Mark Brewster said the ambulance team followed Ebola protocols developed by the company in cooperation with Braintree police, fire, and EMS personnel. Although the patient was cleared as not being infected with Ebola, the Boston Public Health Commission confirmed that it would continue to monitor all reports of suspected cases of Ebola.